Fertility Clinic Seeks Dismissal of Part of Couple’s Lawsuit Over Embryo Mixup

12February 2022

About half the claims in a lawsuit brought by a LA woman and her husband against an Encino fertility clinic where they allege errors by doctors caused her to give birth to the wrong child in 2019 should be dismissed, defense attorneys argue in new court papers.

Plaintiffs Alexander and Daphna Cardinale allege that the California Center for Reproductive Health and Dr. Eliran Mor “recklessly, negligently and/or knowingly lost or actively decided” to give the couple’s embryos to another couple, “while implanting the wrong embryo in Daphna,” according to the suit filed Nov. 8 in Los Angeles Superior Court.

The lawsuit names CCRH, Beverly Sunset Surgical Associates, In VitroTech Labs Inc., and Mor, who is CCRH’s medical director and an owner of all three entities, according to the plaintiffs’ court papers.

But in court papers brought Monday, the clinic attorneys maintain that the negligence cause of action is duplicative of the suit’s medical malpractice allegation. They also state that there are not enough details to support the causes of action for theft and violation of the unfair competition law, and that the negligent infliction of emotional distress claim fails on other legal grounds.

“There is no credible allegation that Dr. Mor was aware the embryo he transferred to Daphna Cardinale had been mislabeled or mixed up and was not her embryo,” the clinic attorneys state in their court papers.

The clinic’s lawyers also call for dismissal of an allegation of a violation of the state Penal Code, but the plaintiff’s attorneys withdrew that claim on Feb. 4. A hearing on the defense motion is scheduled July 6 before Judge Stephanie M. Bowick.

The suit’s causes of action for medical malpractice, battery, breach of contract and breach of the implied covenant of good faith are not part of the defense’s dismissal motion.

According to the plaintiffs’ lawyers, when the Cardinales first saw their newborn daughter after her Sept. 24, 2019, birth, one of the first things they noticed was that, unlike the rest of their family, the baby had a much darker complexion and jet black hair.

“Genetic testing revealed that the baby Alexander and Daphna delivered and raised for months was not genetically related to them,” according to the couple’s attorneys. “Their baby was the biological child of complete strangers.”

The couples eventually switched babies, the suit states.

 But according to the clinic’s attorneys’ court papers, instead of consulting Mor or another doctor regarding Alexander Cardinale’s concerns about the baby’s appearance, the couple instead talked with attorneys. Through the cooperation of the clinic and a Cardinale attorney, the couple’s daughter was identified through two sets of DNA tests, the clinic’s attorneys’ further argue in their court papers.

Unknown to the Cardinales at the time, Mor was “engaged in self-dealing from one company to the other,” the lawsuit alleges.

IVF is a procedure during which eggs are fertilized by sperm in a lab before being implanted in a woman’s uterus.

According to the suit, the other couple also carried to term and gave birth to a baby girl — the Cardinales’ biological child — and raised her for months before the mistakes were uncovered and proven.

As a result of the errors, the Cardinales did not even know of their biological daughter’s existence until she was three months old, the plaintiffs allege.

The families exchanged their infants on January 17, 2020, 114 days after the birth of plaintiffs’ birth daughter, according to the clinic’s attorneys’ court papers.

Regarding the theft claim, the clinic’s lawyers argue in their court papers that the Cardinales must prove that they owned, possessed or had a right to possess their embryos.

 “More importantly, plaintiffs must prove that these defendants substantially interfered with plaintiffs’ property by knowingly or intentionally taking possession of the embryo, (by) preventing plaintiffs from having access to the embryo, (by) destroying the embryo or (by) refusing to return the embryo after plaintiffs demanded its return,” the clinic attorneys state in their court papers.

The negligent infliction of emotional distress cause of action is uncertain because it does not allege whether the Cardinales were direct victims or bystander victims, according to the clinic lawyers’ court papers.

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